Path Dependence and the Pre-Publication Review Process

Over the weekend, we wrote an op-ed in the Washington Post about the lifetime pre-publication review process required of nearly every former government employee (or private government contractor) who has held a TS/SCI security clearance. As we explained, today there is a mess of overbroad and inconsistent regulations that apply to hundreds of thousands of former government employees who signed pre-clearance contracts. But how did this mess come to be?

According to a declassified CIA Inspector General Report written in 1981, in the 1950s and ‘60s, CIA publication reviews were more informal, conducted by the Office of Security in conjunction with the Office of the General Counsel and any other affected Agency components. In the 1970s, prompted by the Vietnam War, the Church and Pike Committee investigations and Watergate, active and former CIA officers began speaking and writing publicly much more frequently. In 1976, in response to the increased volume of nonofficial public writings in need of review, the CIA delegated the prepublication review process to a formal Publications Review Board, the membership and procedures of which became a matter of regulation in 1979. Other agencies soon followed suit.

This new, more robust prepublication review process was challenged almost immediately by a CIA officer who published a book based on his experiences without first submitting it to preclearance review. The case made it to the Supreme Court, which considered whether the officer could be forced to “disgorge the benefits of his faithlessness”—that is, give up his royalties. In a short per curiam opinion, the Court concluded in Snepp v. United States that prepublication review via contract overcomes the presumption against prior restraint because it is a “reasonable means for protecting this vital interest.”

That decision unleashed a massive expansion in the pre-publication review process. In 1982, President Reagan issued Executive Order 12356, which ended automatic declassification of government records and lowered the standard that information must meet before being classified. The order did not contain any express provisions related to prepublication review. But less than a year later, the President issued National Security Decision Directive 84, which required all employees with access to Sensitive Compartmented Information to sign an agreement that included mandatory lifetime prepublication review.

Congress, however, did not sit idly by. It considered the Federal Polygraph Limitation and Anti-Censorship Act to prohibit prepublication review and polygraph policies of the sort included in the new Directive. In a hearing on the bill, members of Congress questioned the constitutionality of imposing lifetime prepublication review requirements on former government employees. Representative Patricia Schroeder called the directive, “a crude and overbroad reaction to the real problem of leaks of classified intelligence information.” Senator Thomas Eagleton noted that the “censorship program . . . takes aim a the wrong animal.” Unauthorized disclosures of national security information were much more likely to come from current employees, who have access to timely, not outdated, information. Public commentators were even more scathing. Conservative columnist William Safire called the directive “Ronald Reagan’s greatest betrayal of conservative principles,” and James Kilpatrick called it “downright dumb” and declared “the whole thing is loony.”

In the face of public pressure, the Reagan Administration suspended the Directive and dropped efforts to systematize rules across the Executive Branch. Congress slowly lost interest and the issue seemed to be over.

Except it wasn’t. Although the Directive was suspended, the prepublication review requirements were not. Instead, the agencies simply held onto prepublication review even though no longer required to do so. If anything, things got worse: because there was no longer any uniform directive governing the executive branch, the agencies went their own ways in developing their prepublication review processes. Today, as this very good recent Note documents, the prepublication review system is a mess of inconsistent regulations across agencies that supposedly are all trying to do the same thing—protect the disclosure of classified government information. The agencies vary in the scope of review, the standard applied, and the time required for publication review.

This story is not over, however. What this history shows is that the current system of pre-publication review is one that no one designed; it is instead the result of strange happenstance. But what a series of unplanned events has made, legislation or a Presidential Directive could unmake. As we said in our op-ed, the Government has every right to take reasonable measures to protect classified information from disclosure. But it is time to act to overcome the mess that history has bequeathed us and put in place more consistent rules that do not so unreasonably burden the free speech rights of those who have served in government.

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

Oona A. Hathaway is the Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and director of the Center for Global Legal Challenges at Yale Law School. Most recently, Professor Hathaway served as Special Counsel to the General Counsel for National Security Law in the Department of Defense Office of General Counsel. Previously, she served as a Law Clerk for Justice Sandra Day O’Connor and for D.C. Circuit Judge Patricia Wald, held fellowships at Harvard University’s Carr Center for Human Rights Policy and Center for the Ethics and the Professions, served as Associate Professor at Boston University School of Law, as Associate Professor at Yale Law School, and as Professor of Law at U.C. Berkeley. Her current research focuses on the intersection of domestic and international law. Professor Hathaway received the Carnegie Scholars Award in 2004, serves on the Executive Committee of the MacMillan Center at Yale University, serves as a member of the Advisory Committee on International Law for the Legal Adviser at the United States Department of State, and has testified before Congress several times on legal issues surrounding the U.S. war in Iraq. She earned her B.A. summa cum laude at Harvard University in 1994 and her J.D. at Yale Law School, where she was Editor-in-Chief of the Yale Law Journal, in 1997.